GOMATHI Vs. VIJAYARAGHAVAN

JUDGEMENT

(1.) The present petitioner is the complainant in C.C.No. 269 of 1983 in the Court of J.S.C.M. Chidambaram. The claims to be the Jegally wedded wife of first respondent Vijayaraghavan. Her complaint under Section 494 I.P.C. is that during the subsistence of their marriage the first respondent married the second respondent as his second wife. Respondents 3 to 5 are the mother, sister and brother of the first respondent. They are charged under Section 494 read with Section 109 I.P.C. for abetment of the offence. The petitioner contends that during trial respondents 1 and 2 specifically pleaded that there was no marriage at all between them, that the second respondent was a virgin and that she never gave birth to any child. The case of the petitioner before the trial Court was that on 17-5-1984, a son by name Vijayababu was born to respondents 1 and 2. And she sought to prove the same by producing Ex.3 which purports to be the Birth Extract of the child. The virginity of the second respondent and paternity of the child have to be established by known scientific methods. So she filed Crl. M.P. No. 2206 of 1987 before the trial court for subjecting respondents 1 and 2 to undergo medical test and blood test. The court below has dismissed the application on 16-6-1987. In the interest of justice direction has to be issued to respondents 1 and 2 and the child to undergo medical examination.

(2.) According to learned counsel for the petitioner, P. Ws. 2 and 3 speak about the second marriage which took place in the house of the third respondent. However, the first respondent totally denies the marriage and the paternity of the child Vijayababu. The parentage of the child is material to decide the factum of second marriage and a blood test undergone by them could convincingly establish the same. Similarly, a medical examination of the second respondent would go to show whether she could have begotten the child. In support of his contention he places reliance on Ulaganambi v. Lagenayaki (1986 Mad LW (Crl) 122 : (1986 Cri LJ 1522). This decision is only an authority for the position that referring the respondent to medical examination will not amount to violation of Article 20(3) of the Constitution of India. However, we have to consider whether the facts and circumstances of the present case justify such a reference.

(3.) The petitioner seeks direction to respondents 1 and 2 and the child to undergo medical examination to prove whether the child is born to the respondents 1 and 2 and whether the second respondent is a virgin. But as rightly urged by Sri. R. Balasubramanian, learned counsel for the respondents, under Section 494 I.P.C. the petitioner has only to prove that the marriage between herself and the first respondent is subsisting and during the subsisting of the said marriage, the second marriage with the second respondent took place. And essential ceremonies were performed with regard to the said second marriage. It is not known how the virginity of the second respondent and the paternity of the child could clinch the issue. Evidently this is an attempt to cause slur on the chastity of the second respondent and it undermines her dignity and outrages her modesty. The plea of learned counsel for the petitioner that only because of the nature of the defence taken up by the first respondent he has to resort to this course is untenable.